Cross Examining Richard Epstein

Just for fun, let's say someone, maybe an actual lawyer, wanted to cross examine Richard Epstein on his model projecting a far less severe Covid-19 pandemic. The details of the competing models -- the standard one advanced by most epidemiologists, including Drs. Fauci and Brix, and the heterodox model proposed by Epstein and said to have been admired and circulated by Jared Kushner -- are probably too complex for most people to understand. Consequently, the cross examination is likely to focus on Epstein's credentials as an expert. If Epstein lacks the qualifications necessary to reach a solid conclusion, then his opinion on the issue could simply be disregarded. How would that work?

First, our hypothetical cross examiner would turn to Isaac Chotiner's interview with Epstein in the New Yorker, asking him to affirm his own statement of expertise. To Chotiner's question about epidemiology, Epstein said,

I’m trained in all of these things. . . . I spent an enormous amount of time over my career teaching medical people about some of this stuff, and their great strengths are procedures and diagnoses in the cases. Their great weakness is understanding general-equilibrium theory. 

I’ve worked on evolutionary theory for forty years in its relationship to law.

Of course, the attorney would eventually challenge the relevance of general-equilibrium theory to a pandemic crisis. The lawyer would also question whether the "relationship of evolutionary theory to law" is helpful to death projections, and especially whether evolutionary theory itself is useful in a time frame of weeks or months(spoiler: epidemiologists say it is not). But that would come later, developed with other witnesses and in final argument.

The first step on cross examination is to point out that the URL for Epstein's essay is "coronavirus-isn't-pandemic," which removes all nuance and places him squarely in opposition to the strong medical consensus, thus appealing to all but diminishing "it's all a hoax" crowd.

Next, the cross examination could turn to Epstein's webpage at NYU. His list of courses is impressive, including Property, Torts, Constitutional Law, Water Law, Food & Drug Law, and Contracts. His page at the Hoover Institute adds Employment Law, Communication Law, Intellectual Property, and Law & Economics.  Health Law & Policy does finally show up, but only after clicking on the "show more" drop-down icon -- which the cross examiner would argue implies secondary importance.

In any case, Health Law & Policy, which may or may not be related to pandemic assessment, constitutes at most one eleventh of Epstein's vast teaching portfolio, and not one that is emphasized on either of his web pages. That might be evidence that he is indeed "trained in all of these things," but a skillful cross-examiner would paint him as a "jack of all trades and a master of none."

Epstein also claims expertise because:

I spent an enormous amount of time over my career teaching medical people about some of this stuff, and their great strengths are procedures and diagnoses in the cases. Their great weakness is understanding general-equilibrium theory.

That would inspire a cross examination like this (answers omitted because they would all be "yes").

Q. You worked with doctors who do procedures and diagnoses, right?

Q. So they would be treating physicians, performing procedures and diagnosing patients, correct?

Q. There are other doctors who do research, including PhDs, who do not do procedures and diagnoses of individual patients, isn't that right?

Q. Those researchers include virologists and epidemiologists, many of whom are PhDs?

Q. They are not the sort of treating physicians to whom you have taught general-equilibrium theory?

Q. Virologists and epidemiologists, as researchers, do engage with theory, don't they? Including models of how viruses spread?

The cross examination would stop at this point, without making the ultimate point: Epstein's work with treating physicians does not support his claim to expertise. But what if Epstein interjected that he also taught theory to epidemiologists? The cross examiner would treat that as another suspicious after-the-fact correction, much like his revised death count from 500 to 5000.

It would not stop there. Epstein also claimed "as a lawyer [to have] a skill of cross-examination." In fact, Epstein, who went directly from law school into teaching, has never cross examined a witness in his life. He has probably seen some cross examinations, and even experienced a few in his consulting work as an expert witness, but it is at best a serious exaggeration for him to claim to possess a lawyer's "skill of cross examination."

Once caught in an exaggeration, an expert witness's credibility is badly damaged, and more so when the witness is opposed  by others with more solid credentials.

Perhaps Epstein is actually on to something that the leading epidemiologists have all missed. It is possible. Other outliers and heterodox thinkers have made meaningful contributions. But a real cross examiner would hit at all of the weak points in Epstein's claims.

There is a classic analogy in final arguments, often used when a witness has been caught in a fib or an exaggeration: If waiter handed you a bowl of strawberries with a single cockroach crawling out of it, wouldn't you just refuse the rest of it, and probably walk out of the restaurant?  Variations on the theme use a plate of pasta, or a piece of rotten meat in a savory-looking stew.

To be clear, the cockroach in the analogy is the spurious claim of cross-examination expertise. Epstein himself is the waiter, and I am sure he is otherwise a very fine fellow and an excellent colleague.

This has just been an exercise, meant only to show how lawyers do their work by exposing the weak points in an opposing case. Cross examination is intended to be a test for the witness. It is not always "fair," but it is, when done well, always extremely revealing. It is Epstein himself, don't forget, who claimed skill at cross examination as a qualification for his opinion on the pandemic. But a real cross examiner would demolish him, and thereby his theory.

 

 

Comments

[Jennifer S Hendricks]

Some more material for the cross: https://rexdouglass.github.io/TIGR/Douglass_2020_How_To_Be_Curious_Instead_of_Contrarian_About_Covid19.nb.html?fbclid=IwAR3yu5WqLGcSva6pTvmu42to5Cfz4VtLD-GrsMNjEsRPfHbf_pdQXnrBe4g

[Steve L.]

That is great, Jennifer. Thanks.

[twbb]

I would note that the problem isn't just that evolutionary theory is not particularly relevant to pandemic response, but that Epstein is also bad at evolutionary theory.

Also where did Epstein develop his vaunted cross-examination skills anyway? I was under the impression he went straight from undergrad to law school to the professorate.

[HHM-1]

This professor is the Oswald Mosley of our time. Now relegated to the refuse pile of history, it should be recalled that Mosley was so wedded to his theory of government that he couldn't (or wouldn't) see the dangers in it. And after the rise of Nazi Germany, Mosely remained unapologetic about his contributions to the weakening of reason and democracy.

[Patrick S. O'Donnell]

[I’d like to place this discussion within a bigger picture.] Whatever the virtues and vices of the adversarial legal model of cross-examination, the intellectual skills displayed by the one doing the cross-examination, and the nature of the evidence that results from this process (as you say, this was ‘just for fun,’ so I am not against this hypothetical exercise or thought experiment here), I think the legal “deposition” model is preferable for a number of reasons, some of them identified in the original post. Why? Because in several respects it gets closer to the sort of public reasoning we hope to find in democratic fora, although it is far from identical with same. And perhaps the foremost reason for such public reasoning is that it is essential to (democratically) deliberative judgment which, in turn, is integral to participatory and representative democracy. The nature of democratic politics and debates, be it involving members of the public, those making claims to authority and expertise, public officials, what have you, should find us unable to simply “disregard” or dismiss the opinions of others, however dubious, implausible or fallacious, in other words, they get a hearing of sorts, even if rather brief and thus transient, hence the right of “free speech.” And in keeping with the principle of charity, we should do our best to avoid abusive and circumstantial fallacious ad hominem arguments (non-fallacious ad hominem arguments are possible, the fallacy in this case being an ‘informal’ one).

For better and worse, this equal right to a form of political participation offers everyone, in principle, a right to be heard, to make arguments, and attempt to persuade their fellow citizens. Because of the obvious and often disguised or more subtle dynamics of power (both legal and political) in the courtroom, the adversarial model of cross-examination is not well-suited to what does and should occur in public conversations, dialogues and debates in a democracy, which at once and in degrees is plebiscitarian, representative, and deliberative (this is not to ignore they dynamics of power here as well, but here it is of a different order and less concentrated, prone to being ‘purified,’ modulated or constrained by the transparency of uninhibited public dialogue and reasoning among equals, thus democratically legitimated). Public speech in a democracy involves the arts of disputation and rhetoric, which of course does not rule out contesting claims to authority or expertise, even scientific expertise (cf. scientism), indeed, appeals to expert opinion or arguments from authority can be, and all too frequently often are—as in Epstein’s case—fallacious (at least as a matter of informal logic, which doesn’t rule out fallacies of a formal or deductive sort as well).

I think we get more to the heart of the matter when we see Epstein’s views as representative of those on the far right, all the way up to the office of the President (to call them ‘conservative’ these days seems a misnomer, especially when we are speaking about sycophantic loyalists to a President who routinely displays in tweets and in public the full panoply of diagnostic symptoms for narcissistic personality disorder). It is because his views are well-disposed to (if not crafted in support of) the ideology of Republican officials as well as their fanatic supporters among the electorate, that they become influential and pernicious. Consider, for example, Trump’s habitual rhetorical reliance in public speeches upon crude, hyperbolic, and often child-like adjectives and metaphors with corresponding homologous and associationist thinking: mistaking bigness for greatness; the quantitative valuation—in monetary or commodity terms—of virtually everything; obsessively tying together competition, size and success; the attraction of novelty (often mistaken for creativity); the thirst for sensationalism; an overweening sense of privilege and superiority (hence the megalomania and related plutocratic and kleptocratic dispositions) rooted in a lifelong fascination with power born of phantasies, illusions, and delusions, the harm of which is exacerbated by mendacious Manichean political propaganda within an overarching ideological framework of racist, xenophobic, and religious (i.e., right-wing evangelical Christian) nationalism. Trump’s views, evidenced with glaring alacrity in his personal and public behavior, are symptomatic, like Epstein’s, of a sick capitalist society or culture (Erich Fromm’s locution, the ‘pathology of normalcy,’ is apt). Sycophantic Republican Party politicians act in shameless collaboration with the often rabidly irrational, ill-educated, and authoritarian-minded members of that portion of the electorate that serves to protect and polish the fragile glass-like membrane that constitutes the president’s ego; together they exhibit pathological symptoms of a body politic exemplifying the dark side of the maxim “like attracts like.” As Thomas Singer writes in his contribution to the edited volume by Bandy X. Lee, The Dangerous Case of Donald Trump (Thomas Dunne Books/St. Martin’s Press, 2017: 281), “There are ways in which Trump mirrors, even amplifies, our collective attention deficit disorder, our sociopathy, and our narcissism. Therefore, this is less about diagnosing a public figure than about recognizing our own pathology.”

That said, Epstein’s libertarian variation on the theme of capitalist obsession with “private wealth creation” perfectly aligns with the regnant value, principle, and practice of contemporary Republican ideology, which is confused or simply conflated with the public or common good. As Michael Dorf asked in a recent post at his blog,

“What are we to make of Epstein’s almost-criminal stupidity? Richard Epstein is hardly a stupid man. Nor do I have reason to think that he is a pathological liar like the President whose policies he has disastrously influenced. What then explains his making arguments that are either extremely stupid, extremely dishonest, or both? Ideological priors seem like the only possible explanation. Epstein is a libertarian who distrusts government. Rather than thinking pragmatically, he falls back on his familiar truisms, saying … ‘[t]he central Hayekian principle applies: All of these choices are done better at the level of plants, hotels, restaurants, and schools than remotely by political leaders.’ It is said there are no atheists in foxholes. Apparently libertarians are made of more stubborn stuff.”

Finally, Republican or right-wing ideology has to date demonstrated appalling (willful?) ignorance of the role of science in a would-be democracy, their attitude indicative of something stronger than an elective affinity with the religious nationalism of right-wing Christian evangelicals (the qualification is necessary because there are, in fact, a comparatively small number of evangelical Christians on the Left). This is not unrelated to their incomprehension, let alone appreciation, of the nature of public health. But let us not to be too complacent on this score: conventional biomedical epidemiological models of epidemics and pandemics leave much to be desired, as recent works by Mike Davis and Rob Wallace (among others) attests. Indeed, we might give careful consideration to a proposed model of social epidemiology that relies on a “capabilities approach” (after Amartya Sen and Martha Nussbaum) to health, one that incorporates biomedical statistics and insights but is not dominated by them (hence natural and social scientists necessarily collaborate). I have in mind here the compelling arguments proffered by Sridhar Venkatapuram in his book, Health Justice: An Argument from the Capabilities Approach (Polity Press, 2011).

Public reasoning after J.S. Mill, John Dewey, John Rawls, and Amartya Sen, should be viewed as one of the foremost virtues of democracy, one that hearkens back to the ancient Athens of Socrates in the Greek world. In the Indian/Indic case, such public reasoning, while not tied to the institutions and processes of democracy as such, often displayed a democratic spirit or flavor, as in the “Buddhist councils” held shortly after the death of Gautama Buddha. In his brief look at these councils, Sen cites “the third—the largest and best known of these” that

“occurred under the patronage of Emperor Ashoka in the third century BCE, in the then capital of India, Pātaliputra (now called Patna). These councils were primarily concerned with resolving differences in religious principles and practices, but they evidently also addressed the demands of social and civic duties, and furthermore helped, in a general way, to consolidate and promote the tradition of open discussion on contentious issues. The association of Ashoka, who ruled over the bulk of the subcontinent (stretching into what is now Afghanistan), with the largest of these councils is of particular interest, since he was strongly committed to making sure that public discussion could take place without animosity or violence. Ashoka tried to codify and propagate what must have been among the earliest formulation of rules for public discussion—a kind of ancient version of the nineteenth-century ‘Robert’s Rules of Order.’ [….]

Ashoka’s championing of public discussion has had echoes in the later history of India, but none perhaps as strong as the Moghal Emperor Akbar’s sponsorship and support for dialogue between adherents of different faiths, nearly two thousand years late. Akbar’s overarching thesis that the ‘pursuit of reason’ rather than ‘reliance on tradition’ is the wat to address difficult problems of social harmony included a robust celebration of reasoned dialogues. [….] In the deliberative conception of democracy, the role of open discussion, with or without sponsorship by the state, has a clear relevance. While democracy must also demand much else, public reasoning, which is central to participatory governance, is an important part of a bigger picture.”

It is in the rather messy public realm of public debate and reasoning that we must confront Epstein’s dangerous if not deadly views (social media and mass media among these fora), which does not resemble in general or by analogy the rarified air of legal cross-examination (structurally prone to ad hominem arguments and character assassination). In this realm, the agora if you will, arguments are rarely if ever decisively defeated, as in the verdict of a courtroom trial (which of course can be appealed or overturned), one reason politics can be either progressive or regressive. As Nadia Urbinati reminds us in her study of J.S. Mill’s published works on democracy, an agonistic model of democratic deliberation (one we could say is true to both history and phenomenological description, apart from its evaluative or normative importance) must live with disagreement and difference of opinion, the common good being a regulative ideal, neither a necessary nor an inevitable consensual outcome. Such fallibilistic reasoning is no less subject to revision and learning, contributing to both good judgment and salutary decisions (sound persuasion). Unavoidably, and for better and worse, such judgments and decisions are not necessarily true or correct (as they should be, for example, in science, or aim to be, in philosophy), at least by design, for our deliberative procedures are incapable of guaranteeing such an end: they may happen to be true or correct, but that is a desirable, aspirational, or accidental outcome, at least for those of us not persuaded by epistemic theories of democracy (which to some extent are modeled on trial by jury, that is, deliberating jurors). In Urbinati’s words, “epistemic democracy wants what deliberative democracy does not: objective standards for the evaluation of social choices that are above political communication and its procedures. [….] The epistemic doctrine is a radical attempt to depoliticize democracy by making it a chapter in the search for truth….” While we may want or expect individuals to be virtuous, to have a disposition to truth, to be perfectionist or perfectibilist, the legitimacy and authority of democratic procedures and public reasoning and debate has no intrinsic ties to such individual moral and psychological desiderata:

“Democracy does not need to advance toward some truth to be legitimate. And although good outcomes are what candidates promise, citizens expect, and procedures allow, it is not because of them that democratic authority is legitimate. Both in the case that we get good outcomes and in the case that we get disappointing results, procedures are legitimately democratic because they deliver what they are made for: to protect the freedom of its members to produce ‘wrong’ decisions. [….] Democratic procedures combine two conditions: some kind of homogeneity—all persons should have some sort of equality in sharing political power—and diversity—each citizen is specific [an individual person] (diverse in in interests, opinions, and values); they presume moreover that dissent (which diversity can engender) is good as an injection of vitality and reviewability into the democratic process, yet not necessarily a means to truer outcomes. While truth tends to overcome dissent, democratic procedures presume dissent always. In this sense, democracy should not be judged [solely] by its capacity to produce correct outcomes but by its capacity to allow all views or ideas to compete openly and freely for attaining decisions they judge important to achieve the promises that democracy makes. [….] Nothing is definitive in a political deliberation scenario whose presumption of legal changeability is its constitutive structure. The permanent openness that any decision has in a free political community is the democratic answer to democracy’s critics from within, who propose narrowing the domain of politics in order to make good and true decisions. Openness to revision, rather than the interruption or containment of democratic practices, is the democratic answer to unsatisfactory democratic decisions. This is the maxim coming from a procedural conception of democracy that is normative.”

Suggested reading:
• Alford, Ryan. Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law (McGill-Queen’s University Press, 2017).
• Auestad, Lene, ed. Nationalism and the Body Politic: Psychoanalysis and the Rise of Ethnocentrism and Xenophobia (Karnac Books, 2014).
• Brown, Mark B. Science in Democracy: Expertise, Institutions, and Representation (MIT Press, 2009).
• Brown, Richard Harvey. Toward a Democratic Science: Scientific Narration and Civic Communication (Yale University Press, 1998).
• Dahl, Robert A. How Democratic Is the American Constitution? (Yale University Press, 2nd ed., 2003).
• Elster, Jon. Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (Cambridge University Press, 2007).
• Elster, Jon, ed. Deliberative Democracy (Cambridge University Press, 1998).
• Fontana, Benedetto, Cary J. Nederman, and Gary Remer, eds. Talking Democracy: Historical Perspectives on Rhetoric and Democracy (Pennsylvania State University Press, 2004).
• Galison, Peter and David J. Stump, eds. The Disunity of Science: Boundaries, Contexts, and Power (Stanford University Press, 1996).
• Garsten, Bryan. Saving Persuasion: A Defense of Rhetoric and Judgment (Harvard University Press, 2006).
• Gilbert, Alan. Democratic Individuality (Cambridge University Press, 1990).
• Goldberg, Michelle. Kingdom Coming: The Rise of Christian Nationalism (W.W. Norton & Co., 2006).
• Goodin, Robert E. Reflective Democracy (Oxford University Press, 2003).
• Goodin, Robert E. Innovating Democracy: Democratic Theory and Practice after the Deliberative Turn (Oxford University Press, 2008).
• Gordon, Robert J. The Rise and Fall of American Growth (Princeton University Press, 2016).
• Greenberg, Karen J. Rogue Justice: The Making of the Security State (Crown, 2016).
• Hedges, Chris. Empire of Illusion: The End of Literacy and the Triumph of Spectacle (Nation Books, 2009).
• James, Michael Rabinder. Deliberative Democracy and the Plural Polity (University Press of Kansas, 2004).
• Johnston, David Cay. The Making of Donald Trump (Melville House, 2016).
• Keller, Evelyn Fox. Making Sense of Life: Explaining Biological Development with Models, Metaphors, and Machines (Harvard University Press, 2002).
• Kincaid, Harold. Philosophical Foundations of the Social Sciences (Cambridge University Press, 1996).
• Kitcher, Philip. The Advancement of Science: Science without Legend, Objectivity without Illusions (Oxford University Press, 1993).
• Kitcher, Philip. Science, Truth, and Democracy (Oxford University Press, 2001).
• Kitcher, Philip. Science in a Democratic Society (Prometheus Books, 2011).
• Landemore, Hélène. Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton University Press, 2013).
• Lin, Ken-Hou and Megan Tobias Neely. Divested: Inequality in the Age of Finance (Oxford University Press, 2020).
• MacLean, Nancy. Democracy in Chains (Viking, 2017).
• Mayer, Jane. Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right (Anchor Books, 2017).
• Pettigrew, Thomas F. “Social Psychological Perspectives on Trump Supporters,” Journal of Social and Political Psychology, Vol. 5, No. 1 (2017): 107-116.
• Piketty, Thomas (Arthur Goldhammer, trans.) Capital and Ideology (Belknap Press of Harvard University Press, 2020).
• Putnam, Hilary. The Collapse of the Fact/Value Dichotomy and Other Essays (Harvard University Press, 2002).
• Rawls, John. Political Liberalism (Columbia University Press, 2005 ed.).
• Richardson, Henry S. Democratic Autonomy: Public Reasoning about the Ends of Policy (Oxford University Press, 2002).
• Seidel, Andrew L. The Founding Myth: Why Christian Nationalism Is Un-American (Sterling, 2019).
• Therborn, Göran. The Killing Fields of Inequality (Polity Press, 2013).
• Urbinati, Nadia. Mill on Democracy: From the Athenian Polis to Representative Government (University of Chicago Press, 2002).
• Urbinati, Nadia. Representative Democracy: Principles and Genealogy (University of Chicago Press, 2006).
• Urbinati, Nadia. Democracy Disfigured: Opinion, Truth, and the People (Harvard University Press, 2014).
• Wills, Garry. Bomb Power: The Modern Presidency and the National Security State (Penguin Press, 2010).
• Ziman, John. Real Science: What It Is, and What It Means (Cambridge University Press, 2000).

[Law Prof]

And Patrick drops the microphone.

[Jennifer S Hendricks]

Is he even admitted to a bar somewhere? Like, how does he get to call himself a lawyer?

[Steve L]

His webpage says that he has been a member of the California bar since 1969.

[twbb]

HE KEEPS DIGGING HIMSELF IN. It's hilarious. He really does seem to be a stupid man.

https://www.vox.com/2020/3/31/21195449/richard-epstein-trump-coronavirus-theory-pandemic

[You Never Know]

Imagine that a bunch of law professors, claiming shared expertise in legal ethics, co-publish a piece which claims that legal officials ought to refer to transgendered persons by their preferred pronouns. This, as a matter of professional courtesy, even if the officials do not personally subscribe to transgendered persons' own accounts about their identity.

On what basis would we recognize such scholars qua ethical experts? Is it because they regularly ruminate upon matters ethical and customary? What if they do so, but are wholly prejudiced?

Alternatively, what if a Nazi scholar claimed, truthfully, that she has spend decades ruminating on matters of ethics and manners, published books on such issues, and regularly meets with peers to discuss them. Is she then qualified as a legal expert? If one says that her values fundamentally transgress or violate some established code (a lawyers' code of conduct, say), why would that invalidate her claims of ethical expertise? (Imagine further that she is fully knowledgeable of the norms embedded in the code in question, but can readily provide sets of reasons to reject most of them as actually being unsound or immoral).

What, moreover, if one had reason to believe that so-called, and self-styled, legal ethics experts, were disingenuously try to sneak their politics in through the back door of manners (in the transgender case, for example.) Would we have a pro tanto reason to think them to actually be immoral? To be pseudo-experts?

By the way, the "far right" is, and has always been, anti-capitalist. Are such efforts at intentional mislabeling (in order to propagandize and delegitimize) immoral? Do the neds justify the means when you what you lie about Trump's rhetoric. For example, it is abundantly clear that it is aimed at the conservative base, and that it ANTAGONIZES Republican officials (a group generally composed of unreconstructed neoliberals and neocons, who delude themselves into thinking that a post-Trump world will see selecting presidential candidates of their sort) rather than catering to them?

What value is there in "public reasoning" when one side of the political aisle deludes itself into claiming complete epistemic authority (despite many being naturalist noncognitivists, when pressed) and relentlessly engages in the delegitimization (and claims the comprehensive epistemic, moral, and political ignorance) of the other? Indeed, what happens if the former's claims are true? What becomes of its own - nonsensical - claims about the equality of peoples and cultures? Does that not falsify its own moronic ideology?

Granted Epstein's original and subsequent claims are imbecilic. One wonders, however, how long it will take for the sorts of efforts evidenced here (of trying to delegitimize "the other") will lead to a complete fraying of the - residual - bonds of citizenship, and where, because they know that you hold them to be per se "ignorant", the Right will just start responding in terms of violence? (How long, moreover, till your left-liberal policy allies in other countries are completely alienated by your totalitarian tactics?) Perhaps the ethics of this should be debated by the experts. Regardless, I look forward to your fear becoming more and more real and pressing.

[Patrick S. O'Donnell]

Re: By the way, the ‘far right’ is, and has always been, anti-capitalist.

This is the kind of ridiculous or misinformed comment (to put it kindly) one has grown to expect at blog posts and on social media generally. The Far Right today is unabashedly capitalist, while historically, there was a brief inter-war period in Europe in which some proclaimed to abhor both capitalism and communism (apparently they were nostalgic for feudalism), there is no such "third force" today. What might have been said is that the Far Right is anti-Liberal, which is not the same thing, in other words, they are conceptually distinct (as the work of such eminent Liberals as J.S. Mill, John Dewey, and John Rawls makes clear), even if Liberalism and capitalism have been historically linked as most Liberals, like Marx, understood capitalism in historical terms as an economically and socially progressive force in comparison to the socio-economic world that preceded it. And please don't inform us that the nominal "National Socialism" of fascists was socialist and not Party-State capitalism, as it had nothing whatsoever to do with pre-Marxian/Marxist communism or socialism (utopian and otherwise) nor Marx's conception of same (the fact that more than a few avowed members of the working-class Left soon became devoted to German fascism was in the main explained, whatever its methodological limitations, by the pioneering research study of 1929 led by Erich Fromm at the Frankfurt Institute and now available in English as The Working Class in Weimar Germany: A Psychological and Sociological Study [Harvard University Press, 1984]).

Who made a claim to “complete epistemic authority?” There is no attempt in the original post or above thread to “delegitimize ‘the other’” but rather attempts to show the flaws in reasoning, the lack of sound argument and appropriate evidence, the fallacious appeal to authority, and so forth. Delegitimizing the beliefs of the sycophantic supporters of Trump (be they public officials or voters), is a perfectly proper aim for those of us concerned about others acting in a flagrantly anti-democratic and unconstitutional manner under the flag of religious nationalism while rhetorically celebrating and invoking the U.S. constitution and democracy.

As for the Right responding with violence, that has routinely occurred for some time now (it has abhorrent historical pedigree in this country) and threats of same arise from the Right on a regular basis (cf. the numerous threats of violence made to Democratic legislators), the following headline being emblematic: Trump Fan Who Made Racist Death Threats to Obama and Maxine Waters Receives 46-Month Sentence: “Stephen J. Taubert said he threatened to kill the former president and the congresswoman because he was upset about “people knocking” President Trump.”

“Totalitarian tactics” are commonplace among (far right) fascist, neo-fascist, and fascist-like parties, movements and governments around the world: in the Philippines, Poland, Hungary, Egypt, India, Spain, Austria, Israel, Switzerland….

[You Never Know]

Why do you ALWAYS lie, Patrick? Aren't you ashamed to affix your name to demonstrably false remarks?

The BNP in the UK, and its predecessors, are anti-capitalist. Its cousins on the Continent are, and have always been, too - long after the Interwar period and WWII. So too is the American Nazi party. They have also always been illiberal; indeed, part of the anticapitalist attitude has been because they believe capitalism fuels multiculturalism and immigration, which they despise. Don't give me your Orwellian nonsense. These are easily verified facts.

Fascism comes from Italy and Mussolini comes out of the hard Left. Further, the German Nazi party abhorred international capital, the price mechanism, etc. More importantly, national socialism is inconceivable without the socialist antecedents. The idea that it has "nothing whatsoever to do" with them is one of the preposterous comments you've ever made here. For example, you cannot possibly explain the Night of the Long Knives without such conceptions and clear economic-political commitments.

Again, your labels, characterizations, and slanders are NOT evidence of any of your claims; they are better explained as part of a delegitimization technique. As yet another example, the idea that Trump's paleocon move is emblematic of "religious nationalism," rather than a move against and away from the religious right is just false. Again, why do you feel the need to lie about this? What is to be gained???

Your listing of some threats misses the point. it's going to get far worse in terms of violence from the right, and much of it will simply be in reaction to your sort of doings... :)

On the other hand, totalitarian tactics are, and always have been, commonplace among the left and what in the United States gets labelled as "liberalism." Orwell wrote his most famous books with the English socialists and the Soviet Union in mind. (Totalitarianism has always been a tendency of the Left, at least since Robespierre, running through to Rosa Luxenburg and Kurt Eisner to Pol Pot). Today, one need only turn ones mind towards political correctness, required diversity statements for employment, and the insanity of the corporate mainstream media news propagation to see evidence thereof among American Democrats. If an asteroid hit the earth they would spin it as being Trump's fault.

And as the Democrats (and mainstream Republicans) continue to engage in class warfare in the form of a policy of non-intervention and protection of mass unskilled illiterate immigration (in an effort for population replacement?), and to silence all dissent about it as "xenophobic," you will watch the demoralized, increasingly poor and desperate working classes turn on you. (As I said above, you missed my point about impending violence). So too as the Left continues to foist the idea that a Dark Ages belief system propagated by a warmongering illiterate child abuser and its current manifestations are perfectly congruent with "liberal democracy" - let alone the US Constitution's First and Fourteenth Amendments! This, in the face of the clear evidence of wide-spread comtemporary crypto-polygamous practices, consanguinity rates, etc., within western countries. This, let alone its history of unabashed imperialism, racism, slavery, and apartheid. (Do you think that if its prophet were here in the USA today, the Left would call for him to be charged for child sex abuse?) I bring you news from Europe: people there CANNOT believe this claptrap anymore - even those who desperately wanted to do so, let alone don't believe it.

Liberalism is dying, thank the gods old and new. This is so because Protestantism, unfortunately, is dying and being replaced. The superficial (secularized) ideology of Mill, Dewey, and Rawls only works when people are willing to tolerate different conceptions of the good under the rubric of right - which many groups won't, or can't (as Locke famously noted in his personal correspondence, completely belying his Letter on Toleration arguments). In other words, it worked when there was a Protestant majority and ruling class, and they could speak in such universal and ideological terms and not actually live what they "preached." Unfortunately, this also means that the Left is returning to its authoritarian (natural) home.

[stilts]

That was a triumph of deeply weird revisionist intellectual history. It probably works better with LSD.

[Rieux]

Regarding Epstein and cross-examining witnesses, I suspect he would think it relevant that he spent many years as a law professor at the University of Chicago, and presumably now further years at NYU Law, teaching students through the rather combative "Paper Chase" version of the Socratic method that he and a number of U of C (and Harvard, etc.) professors favor. (As a U of C Law grad from the time Epstein was there, I managed to avoid taking Epstein's own classes, though it wasn't possible to dodge all of his colleagues who employed the same harsh-Socratic approach.) Epstein was also infamous for endeavoring to verbally beat up visiting scholars who presented scholarly papers at the U of C that were not in line with his approach to Law and Economics theory.

To be clear, I'm not claiming that the practice of being an asshole to (a) 22-year-olds straight out of undergraduate school and (b) visiting law professors is actually equivalent to careful lawyerly cross-examination, but I'd bet that Epstein thinks it is.

[Ellen Wertheimer]

In my opinion, debates are always more meaningful and the participants more credible (or not) when one can check on the credentials of both parties to the particular conversation. If they have done nothing else, the media of today have made this capacity absolutely critical in evaluating information.

Patrick S. O'Donnell versus "You Never Know" thus poses a problem for me. Assuming that Patrick S. O'Donnell is using his real name, I can look him up and learn about his views and background. "You Never Know" not so much.

I am not advocating for posts by real names; that is a conversation for another day. I'm just making the point that the conversation between these two protagonists is not really a conversation as far as I'm concerned.

[Steve L.]

I can confirm that Patrick O'Donnell posts under his real name.

[Patrick S. O'Donnell]

Ellen, You can indeed look up my "credentials," such as they are, on my Academia(dot)edu page, where I have some published and unpublished articles and essays, as well as over 100 bibliographies on motley topics. The CV there is a bit dated, but it will suffice. I am an independent researcher and writer (retired from the labor market) who regularly blogs at Ratio Juris and Religious Left Law. I was a very part-time (adjunct) instructor in the Philosophy Dept. at Santa Barbara City College for a little more than 15 years (prior to that I had all sorts of jobs, the last as a finish carpenter for a general contractor). I used to routinely comment at law blogs, but much less so these days. And I was a guest blogger at The Faculty Lounge some years ago at Dan's invitation. That said, I would hope my statements and arguments can be evaluated, within the constraints of the format, more or less on their own terms, although I often provide sources that I've read or relied upon to make claims of one kind or another should one seek more substantive argument and evidence.

I happen to believe, in brief, that conversation as such does not really occur online: digital "talk" can be a kind of communication that attempts to replicate or mimic a person(s)-to-person(s)/face-to-face conversation, but it does not really come close (hence its status as part of the virtual, world), lacking, among other things, the dimensions of intimacy and various verbal, facial, and bodily cues that contribute in myriad ways to the course and character of true conversation. The benefits and virtues of such conversation far outweigh any actual, alleged, or possible benefits of online comment threads like this one, at least that is what I tend to believe. Thus, for perhaps different reasons, I agree with you that this was not a conversation between two protagonists.

[You Never Know]

If I post under my real name, my academic career will be threatened. You know this, despite certain groups' pretenses to the contrary.

Moreover, if you believe that a debate is not a "real one" (meaningful and credible) simply based on the ideas espoused, criticized, and defended, but because knowledge of the identities of the parties involved must additionally somehow constitute a sine qua non, then you are in the wrong business; for such a claim is entirely fallacious. (In an academic field that professes to teach its students "critical reasoning" skills, basic logic ought to be taught to 1Ls - after, perhaps, mandating basic training in it for its faculties. Fortunately, though, dinosaurs such as Ellen who lack real and adequate academic training and credentials will mostly not be offered academic positions any more.)

Futhermore, Patrick's MO of disinformation, goalpost shifting, and berating others is also well established on this site. (That he also writes like a first year - and hence untrained - PhD candidate is another matter.)

Some time ago, Lubet - a socialist totalitarian hypocrite - posted about a implementing a sort rules of conduct for this website. He noted that he would not tolerate certain offensive or berating posts on this site. However, this was never enforced vis-a-vis Patrick - or really anyone whose political views Lubet shares. He would have been a great Soviet judge.

Regarding stilsts' post. Yes, Patrick's view is indeed revisionist and incredible. The one my posts reflect, by contrast, includes stances that are older than the USA. For some choice examples of why it remains entirely pertinent, see the following (philo-authoritarian) works:

https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/
https://www.press.uchicago.edu/ucp/books/book/chicago/L/bo27554268.html

(The latter work despite itself!)

[First Time, Long Time]

You Never Know, why don't you just take a breath and calm down. And save the whole "I am calm" nonsense. If you don't like this blog, don't visit it. Heck, you could start your own blog and see how many people are interested in hearing your views. At the very least, filter the vitriol and personal attacks if you are going to comment.